No Foreigner In India Can Be Deprived Of Their Rights: Bombay HC Orders Rs 10 Lakh Compensation To Chinese Woman Harassed By Customs Dept
Observing that it is the obligatory duty of the State to ensure that the liberty of foreign nationals coming to India is not deprived except by law, the Bombay High Court on Thursday ordered the Customs Department to issue a "no objection certificate" (NOC) for facilitating the return of a Chinese national woman to her home country, who was wrongly booked in a gold smuggling...
Observing that it is the obligatory duty of the State to ensure that the liberty of foreign nationals coming to India is not deprived except by law, the Bombay High Court on Thursday ordered the Customs Department to issue a "no objection certificate" (NOC) for facilitating the return of a Chinese national woman to her home country, who was wrongly booked in a gold smuggling case.
Single-judge Justice Prithviraj Chavan expressed anguish over the manner in which the Customs Department "harassed" the woman - Cong Ling, who was wrongly arrested in 2019 and since then has been in India leaving her children behind in China, and therefore ordered the Union Government to pay Rs 10 lakh compensation to her.
"Our Constitution commands that foreign nationals coming here shall not be discriminated. They will have to be treated equally before the law and their right to live will have to be honoured and protected. They shall not be prosecuted or convicted except for violation of any law in force in India. This is guaranteed under Article 20 of the Constitution," Justice Chavan said in the order.
Article 21 of the Constitution of India, the judge emphasised, provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law and word "person" in this Article is wide enough to cover not only citizens of this country but also foreigners who come to this country.
"The State has an obligation to protect the liberty of such foreigners who come to this country and ensured that their liberty is not deprived except in accordance with the procedure established by law. Notwithstanding the said guarantee under Article 21 of the Constitution, in this case, the Customs Department acted in a most brazen and perfunctory manner..." the judge underlined.
According to the petition filed by Cong Ling through Advocate Anand Sachwani, she had a flight to New Delhi from Beijing on December 12, 2019. Instead of landing in New Delhi, her flight landed at Mumbai International Airport due to bad weather at Delhi. On arrival, she went to clear the customs and immigration as the diverted flight was to return to Delhi after some time and to avoid delay, she was to travel to Delhi via a domestic flight. However, the customs examined her bag and found around 10 gold bars, each weighing 1 Kg. She was subsequently arrested on the allegation of gold smuggling.
However, a Magistrate Court acquitted her of the charges by an order passed on October 10, 2023. The Magistrate Court noted her explanation that she bought the gold bars to take it to her home country for later converting the same into jewellery.
The Customs then filed an appeal before a Sessions court, despite a circular issued by the Department of Revenue, Union Ministry of Finance mandating that appeals against orders of Magistrates in customs matter be filed directly in the High Court. The Sessions court too upheld the acquittal.
The Petitioner then sought to return to China and for the same she applied for an "exit permit" which was denied by the Customs Department stating that it was now planning to challenge the acquittal order before the High Court.
Criticising the conduct of the Customs Department, Justice Chavan said the officials should have viewed the matter from a humanitarian angle and with sensitivity in light of the fact that apart from her right to life and liberty, she had already spent more than five years in India with two daughters left back in her country.
"It is rightly submitted by the petitioner that conduct of the Customs Department (Prosecution Cell) is reprehensible and unbecoming of a responsible officer/s of the Department. The petitioner, who is a lady, having left her country way back in 2019 with two children behind should not have been troubled and harassed by the Customs Department as it is apparent from the record," the judge observed.
The way and manner in which a foreign national is being treated by the Department, would reflect in the bilateral relations between two countries. This is nothing but victimizing the petitioner without any reason, the judge remarked.
Therefore, the bench ordered the Customs Department to issue an "exit permit" to the petitioner woman within a week and also ordered the Union Government to pay Rs 10 lakh as compensation to the woman. A further directive is issued to recover the amount from the salaries of the concerned officials, who harassed the petitioner.
Case Title: Cong Ling v. FRRO